The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-04-28
true, the other question need not be con-


sidered.
While it is true that an injunction in
full force, when dissolved, still remains in
force while the judgment was suspended
by an appeal under a supersedeas bond,
yet this is not a similar case, as the re-
straining order and writ fixed period at
which it would cease to be operative. 1T
shall remain in force until the hearing of
this cause" was the judicial determination.
1t could live no longer. 1t required no de-
cree to dissolve it when the fact transpired
which limited its duration, and the penal
order in no way affects the question.
The restraining order had certain
duration.
The action of the court below cannot
be revised by us, and hence not affected
by appeal. On appeal restraining order
or writ, which had ceased to be operative,
cannot be brought into existence.
The rule that an appeal will continue
an injunction, often results harshly, and
we are of the opinion that it should be
applied only to those cases contem plated
by law. 1t not appearing that any
existing order has been violated,
| the rule to show cause
is dismissed, and and respondents recover
from compliments all costs in this be-
half.
G. S. Bowden VS.. B. F. Gilbert ct al,
from Limestone county. Opinion by
Stayton, A. j.
This action was brought in a justice
court by appellant to recover on a note
of $500, on which 500 had been paid.
Appellee set up counter claims of $400.
A judgment was gotten for $63, and an
appeal taken to the district court. Here
appellee ct up larger counter claim
| than the justice court would have juris-
diction of. The court erred in admitting
this, for, although any new matter might
be pleaded, no new cause should be
set up by appellee; NOR shall any set-off
or counter claim be set up by the defend
ant which was not pleaded in the court
below. r. s., 316) The counter claims
in the justice court and district court ex-
ceeded the jurisdiction of the justice. If
appelles desired relief ON these matters
they should have brought suit in court
having jurisdiction. How far the coun-
ter claims influenced the jury it is hard to
tell. For this error the judgment is re-
versed and the cause remanded.
IL W. buu cdu0 h66Co VS. u dllOo a. hOu-
fro ct al, from johnson county. Opinion
by Willie, @. j..
This was an action of trespass to try
title to recover of appellants $50.
Appellants oman and wife, lived
| in Texas until 1867 or 1868,
when they moved to Arkansas. In 1870
the land they had lived on was patented
to William Reece, who owned the certif-
cate Jointly with his brother, d. w. Reece.
In 1871 William Reece, under verbal in
structions, decided D. w. Reece's interest
to Abraham Reece, who paid d. W. part
of the consideration, the balance being
paid by Abraham's children. In 1875 D.
W. Reece and wife came back to Texas,
and lived in Tarrant county until 1877,
| when they moved to different place
from The one in controversy, in johnson
county. In the fall of 1877 they rented
this land from William Reece and stayed
on it until they were put off by the officer
executing the writ of sequestration. In
1882 William Reece sold the land to
Renfro. Appellants now claim the land as
homestead. There is proof that Mrs.
Reece left her homestead I'M
willingly and often expressed
the opinion, while in Arkansas,
to return and reclaim the land
The court below quoted the title of Rem
fro ct al, and appellants made this ap-
peal.
1t is fact that the homestead right
may be lost by abandonment, and to do
this it is necessary to acquire another
homestead. Where husband and wife
have moved to another state abandonment
is conclusively presumed.
The only difference between
the many cases decided on
this question and this are the
statements of the wife of her intention to
return, and even these were not made
known to Renfro.
1t is unreasonable to think that the
mere declarations of the wife coupled with
long absence should outweigh the con-
trary evidence furnished by that absence
Here they were away seven years, and
when they returned lived on the land as
tenants; it was too late to repudiate their
tendency if they wanted to claim their
homestead, and if the law allowed them to
change their minds they must have done
so as soon as they came back.
We do not consider that the deed by
VIM. Reece was improperly executed.
There is no error and the case is affirmed.
W. II. Kellogg d Go. VS.. Fred Muller,
from Grayson county. Opinion by Gaines,
A.. j.
One Porter made deed of assignment
to appellee before the act of 1879 concern
ing assignments went into effect. Appel
ans attached the goods conveyed in the
deed, part of which were levied on. APP
pellees brought this suit against appel
lants and oue Everhart, the sheriff who
made the levy, and his sureties, to recover
damages for the seizure. Everhart and
his sureties pleaded that he had an in
demnity bond from appellants, and asked
judgment against them in the event ap
pellees won. The jury found for the
plaintiff against all the defendants, and
in favor of Everhart against appellants
for the amount of the verdict, and 800
attorneys fees.
The first exception to the deed was that
it authorized assignee to sell for
credit, because it contained the
words converting the same into cash or
it's equivalents" There may be little
doubt here, but to be equivalent to
cash means something commercially as
good as cash. The grant of power to an
assignee to sell for credit, is a badge of
fraud; by no reasonable construction do
we think the power in the deed before us
can be considered an evidence of fraud.
The second exception was that the deed
was void ON its face, because it did not fiji